It may be a reflection on human nature, that such devices should be necessary to control the abuses of [man and his] government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary.

James madison – federalist no. 51, feb. 8, 1788; bracketed insert my own

We continue now from Part 3 if you have been following this series.

Delegation vs. Non-delegation

As early as 1826 and again in 1866, and still again in 1895 the controversial debate began over whether Congress can or should delegate its legislative powers to other Branches and agencies of federal and state government. The argument has been raging ever since, even after the Seventeenth Amendment was ratified in 1913. What was all the controversy about? Let’s look at a streamlined timeline:

• 1826 — Members of the 20^th U.S. Congress were to be elected, but during a transitional period of the First Party System to the Second Party System. This caused deadlocks between several state legislators electing Senators. Many Senate seats remained vacant for up to 2-years.
• 1864 — John Stockton of New Jersey is controversially elected as Senator, but done so by the New Jersey state legislatures changing rules of election from a majority vote to a vague plurality vote.
• 1866 — The Senate eventually threw out John Stockton’s election then passed a law establishing uniform procedures for election of senators by state legislatures. Indiana had a similar flawed election.
• 1895 — Following the Civil War, disputed senate elections, constant tampering with election regulations by state legislatures, and increased deadlocks leaving Senate seats vacant for long periods, e.g. Delaware, eventually prompted many states to adopt the “Oregon System.”
• 1906 — Cosmopolitan magazine published the David Graham Phillip’s series, “The Treason of the Senate” which garnered and galvanized public support for widespread senatorial election reform.
• 1911 — Senators Joseph Bristow (KS) and William Borah (ID) offered resolutions to amend the Constitution followed by 29 states supporting the amendment measure. The Senate then passed the amendment.
• 1913 — The House passed the amendment, thus ratifying the Seventeenth Amendment with the necessary three-fourths majority.

During those 87-years the biggest problems the 17^th Amendment helped resolve was the chronic deadlock of state legislatures paralyzing the federal Congress from doing its job: debating and passing laws for the benefit of the nation and American people. During the 19^th-century many powerful, wealthy, influential corporations were seeking to control state legislatures to capture the Senate in Washington D.C. Subsequently, those senators would construct political mechanisms focused primarily on their own interests—and those of the corporations—rather than those of their own state, and worse, their own people of their state!

However, by the 21st-century, the basic problems persist with keeping our Republic democracy truly representative of We the People, A) the distortions, corruptions, and/or purveyors of “state’s rights” and ‘we don’t need no Yankees (Feds) telling us Rebels how to live happily with slavery/free-labor’ or B) the covert, repressive inequality schemes in individual states which always scream “state’s rights” the loudest and longest. Today they’ve only re-disguised their argument into modern political rhetoric that to very gullible, naïve hearing ears… sounds Constitutional and in-defense of the Founding Fathers. On the contrary, upon closer examination the rhetoric is destructive of all basic principles those same Founders intended to create: a Republic democracy for all citizens, no exceptions.

The problem today is not vacant senate seats lasting for up to two years of the 19^th-century, but how often Congress delegates policy decisions to small federal agencies—heavily influenced by corporate lobbying groups and dollars—under very broad and vague standards. Care to guess who appoints the leadership controlling most of these agencies?

Yep, the President.

A prime example of the Bicameral Congress and its members skirting accountability to do their sworn job is the country’s 60-year epidemic of gun-control and domestic massacres by high-capacity, lethal, often military assault weapons. Even when a House majority might pass no-brainer, reasonable legislation for tighter, more thorough red-flag laws, for bans on all military-styled weapon sales to the general public, and higher smarter age-limits for gun-buyers along with mandatory 6-month gun-safety training minimum, our current 18^th-century Constitution makes it quite easy for Senators (representing a distinct minority of the population) to block it or let it die.

Furthermore, and here is the jagged pill to swallow, as of September 2019, Senators from twenty-nine states with the HIGHEST average levels of gun-ownership control over 58% of the votes in the Senate, despite the fact that their own states represent just 46% of the nation’s population. The worst part of this ill-gotten misrepresentation is that even if the Senators from states of the majority of the American population all supported better, tighter, more gun-control laws, they would not have the necessary votes to pass it in the Senate. Hence, gridlock, unaccountability, more massacres of more students and/or church-goers occur, then the transgenerational damage is passed on to the next. Repeat again in four months or so, or less.

Folks, this is bicameralism at its finest for the last 60-years and counting. Or its worst. This is appalling! And should I cover widespread Climate Change denialism via false propaganda? I’ll spare my readers for now.

Due to 1) this incessant Congressional members irresponsibility, 2) defunct bicameralism causing gridlock and legislative inactivity or collapse, and 3) Congressional-careerists delegate increasingly more amounts of authority to the Presidents and Vice-Presidents—who often become their scapegoats in national tragedies. All too often Presidents and their political party’s platform and ideals become easy targets of opportunity for the opposing Party. Repeat it all over again during the next Administration’s tenor. Ladies and gentlemen, in our nation’s many, many domestic tragedies and multiple deaths of innocent Americans, rarely is the White House the sole problem of the tragedy. No, many times it is Bicameralism and career Congressional members not fulfilling and doing their Constitutional duties. They pass the buck.

Therefore, by default and dysfunction, our Supreme Court, who now repeatedly helps Congress to abdicate their Constitutional responsibilities—in gridlock and inactivity—makes the SCOTUS much more powerful than it was ever designed to be, and throws the sacred concept of Tri-Equal Authority within Separation of Powers out of balance, thus causing further dysfunctions.

The Supreme Court Turned Goliath by Default

Because for the last six decades Congress has increasingly and deliberately treated political risks not as their legislative duty, but as fodder for court disputes, our SCOTUS today is a behemoth of final authority and impunity. They have become more a nine member panel of supreme kingly/queenly rulers than actual court justices commissioned to overseeing the Executive and Legislative Branches as well as the appropriate interpretation of the Constitution; their originally designed function. Not anymore.

Congress is not naïve or ignorant about legislative vagueness or ambiguity in their language. They are very aware when they have passed ambiguous or potentially UN-constitutional legislation. As a stop-gap they intentionally pass this responsibility to the courts skirting any blow-back upon their careers and reelection.

There are two more prime examples of malfunctioning Balance and Separate Powers directly resulting from chronic congressional gridlock:

1. The 2000 Presidential Election & the Courts – in the state of Florida in December 2000, the people’s votes may have given Florida’s twenty-five Electoral College votes to the Democratic candidate Al Gore if a legal recount had been allowed. Instead, the U.S. Supreme Court decided that the Republican candidate George W. Bush won the popular vote in Florida, overruling the Florida Supreme Court’s demand for a legal recount. Essentially, only nine Justices (people) usurped, threw out the people’s votes in Florida, handing Bush the Presidency. This begs the simple question: Was this really a democratic free election by the people of Florida? Reading the dissenting opinions of the four (losing) Justices are recommended and generally agreed with by legal, constitutional scholars. Nevertheless, this Supreme Court decision allowed members of Congress, Carte Blanche to escape accountability for Bush’s presidential win as a minority president.
2. The Affordable Care Act vs. the U.S. Supreme Court – in the landmark decision of NFIB vs Sebelius, SCOTUS had the final authority on the constitutionality of the Patient Protection and the Affordable Care Act. In the end, the Supreme Court decided that in all future cases, whether many Americans lived at or below the national poverty line, it did not matter. They could NOT afford or receive adequate medical care if they lived in a state which refused healthcare based on their available or lack of financial status. In other words, your healthcare and well-being depended not on whether you were an American citizen or not, but in what zip code you resided, working or unable to work.

Bottom line? The Constitution’s Separation of Powers no longer functions as was originally designed by the Core Founding Fathers. Only a new, people’s Constitutional Convention—as written in our current constitution’s Article Five—can successfully and adequately reform our dead or decaying system as a whole, and return it to a true, more perfect union as a Republic. A Republic that actually functions for and serves its people, not as oligarchies, or corporations and a few court justices suppressing or oppressing its peoples well-being!

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In the next installment of this series, Part 5, I will show that our antiquated 18^th-century Constitution has failed as a foundation for a representative democracy. I hope my loyal readers will join me again then. Thank you too for your continued patience with this series. Meanwhile, please do feel free to offer your feedback and thoughts in comments below. 😊

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The Professor’s Convatorium © 2023 by Professor Taboo is licensed under CC BY-NC-ND 4.0